McKee v. McKee, (1994) 153 A.R. 8 (QB)

Judge:Bielby, J.
Court:Court of Queen's Bench of Alberta
Case Date:April 21, 1994
Jurisdiction:Alberta
Citations:(1994), 153 A.R. 8 (QB)
 
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McKee v. McKee (1994), 153 A.R. 8 (QB)

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Shirley Jane McKee (petitioner/plaintiff) v. David Vernon McKee (respondent/defendant)

(Action Nos. 4803-91328; 9403-03211)

Indexed As: McKee v. McKee

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

April 21, 1994.

Summary:

A husband and wife separated after 20 years of marriage. They reconciled 18 months later. The reconciliation was not successful and they separated permanently. The wife was granted interim support after the second separation. The wife petitioned for divorce judgment, increased maintenance for an indefinite period of time and a divi­sion of the marital property.

The Alberta Court of Queen's Bench granted the divorce and awarded the wife spousal support of $1,800 per month for an indefinite period and an unequal division of matrimo­nial property in the wife's favour.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - See [ Family Law - Topic 875 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A husband and wife separated after 20 years of mar­riage and two children - They sold the marital home and split the proceeds - The wife did not apply for support - They attempted a reconciliation 18 months later - The wife moved to Edmonton to live with her husband in his home - They spent approximately $6,000 towards reno­vations - Approximately two years later they separated again and the wife applied for an equal property division, including the equity in the second home - The Alberta Court of Queen's Bench included the equity in the second home and made an unequal division in favour of the wife to take into account the support monies she should have received during the first sep­aration - See paragraphs 67 to 83.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - A husband and wife separated after 20 years of marriage and two children - The husband had a pension plan with the Province - He asked to pay the wife's interest in a lump sum rather then have the pension divided at source - The Alberta Court of Queen's Bench ordered that the wife's interest in the pension plan to be paid directly to the wife when the husband received the benefits - See para­graphs 84 to 88.

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance and awards - Effect of income tax liability - A husband and wife divorced after 23 years of mar­riage and two children - The wife sought maintenance of $2,000 per month indefinitely - The Alberta Court of Queen's Bench awarded the wife $1,800 per month - The court considered, inter alia, that the husband had a 40% tax rate so that any support paid by him would actually cost him only 60% of the sum set - The court also con­sidered that the wife had a mar­ginal tax rate of 26% which would gener­ate an after tax income of $2,050 per month - See paragraphs 53 and 54.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Variation of periodic pay­ments - A husband and wife divorced after 23 years of marriage - The wife received $750 spousal maintenance per month pursuant to an interim consent order - Upon divorce, the wife sought variation to $2,000 per month indefinitely - The Alberta Court of Queen's Bench applied the principles of ss. 15(5) and 15(7) of the Divorce Act and awarded the wife $1,800 per month for an indefinite period - See paragraphs 15 to 65.

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Consequences of leaving labour market for family responsibilities - A husband and wife divorced after 23 years of marriage and two children - The husband earned $60,000 per year and the wife earned $8,400 - The wife was the homemaker and primary caregiver throughout the marriage - Any career decisions made or foregone by her were always secondary to the husband's con­cerns and to her duties as mother and homemaker - After 23 years of marriage the wife was in the position of only being able to find part-time minimum wage work - The Alberta Court of Queen's Bench awarded $1,800 per month main­tenance indefinitely - See paragraphs 23 to 25 and 32 to 35.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - To wife - Considerations - A husband and wife separated after 20 years of marriage and two children - They recon­ciled after 18 months - Approximately two years later they sepa­rated permanently - The wife received interim maintenance of $750 per month - Upon divorce, the wife applied to increase support to $2,000 per month indefi­nitely - The husband earned approximately $60,000 - The wife earned $700 per month - The Alberta Court of Queen's Bench considered s. l5 of the Divorce Act and looked at duration of cohabitation, functions per­formed by each spouse, economic advan­tages or disad­vantages, financial conse­quences of childrearing, relief against economic hard­ship arising from marriage breakdown and economic self-sufficiency - The court allowed the application and awarded the wife $1,800 per month indefinitely - See paragraphs 15 to 66.

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance and awards - Effect of income or potential income of claimant - See [ Family Law - Topic 4021.2 ].

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 20].

Morison v. Morison (1993), 139 A.R. 124 (Q.B.), refd to. [para. 37].

Au v. Au, [1993] A.J. No. 431 (Q.B.), refd to. [para. 41].

Heinemann v. Heinemann (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136; 20 R.F.L.(3d) 236 (C.A.), refd to. [para. 55].

Offet v. Offet (1993), 150 A.R. 11 (Q.B.), refd to. [para. 56].

Linton v. Linton (1990), 42 O.A.C. 328; 75 D.L.R.(4th) 637 (C.A.), refd to. [para. 66].

McAlister v. McAlister (1982), 41 A.R. 277; 23 Alta. L.R.(2d) 141 (Q.B.), refd to. [para. 85].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15 [para. 20]; sect. 15(5)(a) [para. 21]; sect. 15(5)(b) [para. 23]; sect. 15(5)(c) [para. 26]; sect. 15(7)(a) [para. 30]; sect. 15(7)(b) [para. 38]; sect. 15(7)(c) [para. 40]; sect. 15(7)(d) [para. 47].

Counsel:

John A. McCrae, for the petition­er/plaintiff;

Brenda L. Stothert-Kennedy, for the respondent/defendant.

This case was heard before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 21, 1994.

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